- 16 - the confidentiality of the documents kept by [a former consultant to the plaintiff]”); Apex Mun. Fund v. N-Group Sec., 841 F. Supp. 1423, 1433 (S.D. Tex. 1993) (refusing to recognize attorney- client privilege over documents that the party asserting the privilege had effectively abandoned to a former employee). International has made no showing of any precautions taken to maintain the confidentiality of the exhibits, either generally or with respect to departing employees, such as Moore. Indeed, Dr. Joffe was Manager of Surgery Center in 1997, when Kelly authored the exhibits, and continuing through July 28, 2000. He was available to testify or provide an affidavit as to precautions taken to insure the confidentiality of the exhibits, but he did not do so. We think that a fair inference to be drawn from International’s failure to call Dr. Joffe or provide his affidavit is that his testimony or declaration would have been negative to International. See Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946) (“the failure of a party to introduce evidence within his possession and which, if true, would be favorable to him, gives rise to the presumption that if produced it would be unfavorable”), affd. 162 F.2d 513 (10th Cir. 1947); see also United States v. Tory, 52 F.3d 207, 211 (9th Cir. 1995) (similar). We therefore find that Surgery Center failed to preserve the confidentiality of the exhibits, with the result that Moore’s disclosure of the exhibits destroyed thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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